Portland Police 'most arrested' list faces ACLU challenge

For the first time since Portland police created a secret list five years ago identifying the 35 most-frequently arrested petty criminals in the city's core, the American Civil Liberties Union and a trio of defense attorneys are challenging its constitutionality.

During a hearing in Multnomah County Circuit Court on Wednesday, attorneys asked police and a prosecutor to explain exactly how the list of drug- and property-crime suspects is compiled and why it is kept secret.

Testimony by Officer Jeff Myers confirmed one of the defense attorneys' suspicions: The list of 35 targeted individuals has grown to almost 400 people, some of whom are prosecuted more harshly for offenses.

Defense attorneys contend that the list unconstitutionally pegs people as chronic offenders based on arrests -- not convictions. Defense attorneys say individuals who wind up on the list have no way to appeal.

Public defender Lisa Pardini, whose office subpoenaed a copy of the list, found that it includes a disproportionate number of African Americans. Pardini also said many on the list got there because they violated the city's now-defunct drug-free zones, which survived a slew of court challenges until a study showed police disproportionately banned African Americans.

The Portland Police Bureau and prosecutors, on the other hand, contend the list -- part of the bureau's Neighborhood Livability Crime Enforcement Program -- is constitutional and has proven incredibly effective at reducing the likelihood that offenders will repeat their crimes. They say the compilation of names has helped police get services -- such as housing and drug treatment beds -- to the city's most chronic offenders.

In response to a defense question, Myers, the list's creator, testified that an individual's name on the list doesn't make it more likely that he or she will be booked into jail. Instead, he said, a person on the list would get an inpatient drug treatment bed immediately instead of waiting six months for an opening.

One of the exhibits Wednesday, submitted and read aloud by Elden Rosenthal, an attorney representing the ACLU, was an e-mail from deputy city attorney David Woboril explaining that the city keeps the list confidential to reduce the likelihood the city would be sued for defamation because it is based on arrests.

"I certainly have no desire to defame someone's character by distributing information about them that is negative," Myers said. The city spends $2.5 million a year on programs to help people on the list, which Myers said targets those individuals believed to be the most prolific quality-of-life criminals. To land on the list, Myers said, individuals must be arrested within several zones of the city -- the greater downtown area, inner Southeast and inner Northeast Portland -- and for such quality-of-life crimes as drug possession, shoplifting, ID theft and breaking into cars.

At issue during the hearing, which continues today, are the 2008 arrests of Ronald Terrance Washington, Janet Mary Strachan and Sylvester Brown for drug possession. Strachan was arrested after a security officer for Portland Patrol said she was smoking crack cocaine on a sidewalk in Old Town. Police arrived to find a pipe on the sidewalk near Strachan and arrested her for possessing drug residue.

That would typically be a misdemeanor, but because she is on the list, she is being prosecuted for felony cocaine possession. Strachan, 51, has a record of more than a dozen misdemeanor convictions, mostly for drug possession and theft. Police argue she belongs on the list and deserves to be prosecuted for a felony.

Although police have been compiling a list -- updating it every three months -- since 2003, prosecutors didn't start seeking stiffer charges for those individuals until January 2008, when the practice was written into policy. Before then, said senior deputy district attorney Mark McDonnell, his office still might decide to charge someone arrested for possession of drug residue with a felony -- rather than a misdemeanor -- if that person had a serious criminal history.

Defense attorneys, led by Rosenthal, have asked Judge Dale Koch to dismiss felony charges against their clients.

Attorneys from both sides are expected to finish interviewing witnesses today and argue their cases. Koch is not expected to make his decision today.